Two-Cent Law

To the Honorable, The Judges of the Supreme Court of Appeals of the State of West Virginia:

Your petitioners, Wm. G. Conley, Attorney General of the State of West Virginia, and S. B. Avis, Prosecuting Attorney of the County of Kanawha, said State, most respectfully represent unto your Honors that they are aggrieved by two orders of the Circuit Court of Kanawha County, West Virginia, one entered in the above styled cause on the 2d day of December, 1908, and the final order entered therein on the 16th day of June, 1909. A transcript of the record of the proceedings in said cause is herewith presented as a part of this petition.

Your petitioners respectfully represent, that from the record in said cause it will appear that the summons was returnable to July Rules, 1908, and that the bill of the plaintiff with its exhibits were filed in the office of the Clerk of the Circuit Court of Kanawha County, West Virginia, at the Rules to which said summons was returnable; that the plaintiff in its bill prayed, among other things, for an injunction to enjoin, restrain and prohibit these petitioners, as the Attorney General of the State of West Virginia and the Prosecuting Attorney of Kanawha County, respectively, from enforcing chapter 41 of the Acts of the Legislature of West Virginia of 1907, which limits the charges for the transportation of passengers to two cents per mile or fractional part thereof, and that said law, might be declared unconstitutional, null and void and of no effect so far as it related to the line of railroad of the plaintiff, and to enjoin, restrain and prohibit these petitioners from procuring or attempting to procure indictments against the plaintiff, and from instituting criminal proceedings or prosecutions against it of any character because of its failure to observe and carry out said two-cent law.

That on the 2d day of December, 1908, your petitioners appeared specially to said bill, in the Circuit Court of Kanawha County, and filed in writing their motion to dismiss the suit on the ground that the same was, in effect, a suit against the State of West Virginia without her consent and therefore prohibited by the Constitution of the State of West Virginia, to which motion the plaintiff, by counsel, objected, and after argument of counsel the motion to dismiss the suit is overruled.

That thereupon these petitioners filed their joint and separate demurrer in writing to said bill, and after argument by counsel their demurrer was overruled; and that thereupon these petitioners tendered and filed their joint and separate answer to said bill, to which answer the plaintiff replied generally and filed in writing a special reply thereto in so far as the answer prayed for affirmative relief.

That subsequently a large number of depositions were taken on behalf of both the plaintiff and the defendants, and the cause was argued and submitted on its merits to Judge Burdett of the Circuit Court of Kanawha County, on the _____ day of April, 1909.

That on the 16th day of June, 1909, a final order was entered by said Court declaring unconstitutional and void the Act of the Legislature of West Virginia, passed February 20, 1907, - being chapter 41, and entitled "An Act relating to and regulating passenger rates upon the railroads in the State of West Virginia and prescribing penalties for the violation thereof," because it unreasonably and unjustly discriminated against the plaintiff and other railroad companies owning railroads more than fifty miles in length and because it deprived them of the "equal protection of the law;" and also because "it has the effect to deprive the plaintiff of its property without due process of law and is confiscatory," and enjoining these petitioners, as prayed for in the bill, from enforcing said Act against the plaintiff.

That it will further appear from the record, that said final order provides that "ALL OTHER PERSONS be, and they are hereby enjoined, restrained and prohibited from instituting or prosecuting any actions, suits or proceedings, civil or criminal, against the said plaintiff or against any of its officers, agents or employes for the purpose of subjecting any of them to the penalties of said Act, or for the recovery of any damages or overcharges under or by virtue of said Act or any other law of the State of West Virginia, because of or growing out of the failure of the plaintiff or any of its officers, agents or employes to put into effect or to observe any of the provisions of said Act, or for violating any of the provisions of said Act or any part thereof."

That it will still further appear from said record that the Court refused to grant the affirmative relief prayed for by these respondents.

Your petitioners respectfully submit that the Circuit Court erred in the following particulars, to-wit:

First: The Court erred in its refusal to sustain the motion of the defendants to dismiss the bill of the plaintiff as being a suit against the State of West Virginia without her consent.

Second: The Court erred in its refusal to sustain, the demurrer to the bill of the plaintiff.

Third: The Court erred in holding chapter 41, Acts of the Legislature of 1907 unconstitutional and void as being an unreasonable and unjust discrimination against the plaintiff and other railroad companies owning railroads more than fifty miles in length.

Fourth: The Court erred in enjoining, restraining and prohibiting the defendants, and each of them, from performing their official duties, as required by said chapter 41.

Fifth: The Court erred in enjoining, restraining and prohibiting "All other persons" not parties to the suit from instituting and prosecuting suits against the plaintiff under said bill.

Sixth: The Court erred in refusing to grant these petitioners the affirmative relief, or any part thereof, prayed for in their answer.

Seventh: The Court erred in holding that said chapter 41 of the Acts of the Legislature of 1907 "has the effect to deprive the plaintiff of its property without due process of law and is confiscatory."

Eighth: The Court erred in its refusal to grant a stay of thirty days until application for an appeal could be made to the Supreme Court of Appeals of West Virginia.

Ninth: The Court erred because of the many other errors apparent on the face of the record in this cause.

Your petitioners therefore pray for an appeal and supersedeas herein, that all matters of law and evidence may be brought before the Supreme Court of Appeals of West Virginia and reviewed; and that the decrees entered in said cause on the second day of December, 1908, and on the 16th day of June, 1909, may be reversed and set aside, and such orders entered in this Court as the Circuit Court should have entered therein.

WM. G. CONLEY,
S. B. AVIS, Petitioners.
By Counsel.

WM. G. CONLEY,
Attorney General, State of West Virginia.

S. B. Avis,
Prosecuting Attorney of Kanawha County.

We, Wm. G. Conley and S. B. Avis, attorneys at law, practicing in the Supreme Court of Appeals of West Virginia, hereby certify that in our opinion the decrees complained of in the foregoing petition ought to be reviewed and reversed by your Honorable Court.

Given under our hands, this 27th day of July, 1909.

WM. G. CONLEY,
S. B. AVIS.

State of West Virginia, to-wit:

The appeal and supersedeas is hereby allowed, as prayed for in the foregoing petition, to take effect upon the petitioners, or either of them, or any one for them, executing bond in the penalty of $800.00.

Done in vacation, this 28th day of July, 1909.

L. JUDSON WILLIAMS;
Judge of the Supreme Court of Appeals of West Virginia.

. . .

(And at another day, to-wit: At Rules held in the Circuit Court Clerk's Office of Kanawha County on the First Monday in July 1908 came the plaintiff by its attorneys and filed its Bill against the said defendants, which bill is in the words and figures following, to-wit:)

IN THE CIRCUIT COURT OF KANAWHA COUNTY WEST VIRGINIA:

THE BILL OF COMPLAINT OF COAL & COKE RAILWAY COMPANY, A CORPORATION CHARTERED AND EXISTING UNDER THE LAWS OF THE STATE OF WEST VIRGINIA, AND A CITIZEN OF THE STATE OF WEST VIRGINIA AND RESIDENT OF SAID STATE, AGANST [sic] WILLIAM G. CONLEY AND S. B. AVIS, BOTH CITIZENS OF THE SAID STATE OF WEST VIRGINIA FILED IN THE SAID CIRCUIT COURT OF KANAWHA COUNTY, WEST VIRGINIA.

I. Plaintiff complains and says that it is a railway corporation chartered under the general laws of the State of West Virginia and owning and operating a railroad lying wholly within the State of West Virginia, extending from Roaring Creek Junction, near Elkins, in Randolph County, through the Counties of Randolph, Barbour, Upshur, Lewis, Gilmer, Braxton, Clay and Kanawha to the City of Charleston in said Kanawha County, having with its branches a total of about 183 miles of railroad.

II. That about 60 miles of said railroad extending from the City of Charleston partly through the Counties of Kanawha and Clay, was built between the years of 1890 and 1904, by the Charleston, Clendenin & Sutton Railroad Company, and that the plaintiff, Coal & Coke Railway Company, acquired said railroad in the year 1904 and built the residue of said railroad extending to Roaring Creek Junction between the year 1904 and the early part of the year 1906; that through trains have only been running on said railroad from Roaring Creek Junction to Charleston since January, 1906, and that the road has been in process of construction since 1904 to nearly the present time; that it extends through a sparcely settled, largely undevelopved [sic] country, and depends for its ultimate success upon the development of the coal and timber and other industries along its line, which has been very much retarded by the depression in business now prevalent.

III. That the actual cost of building said railroad from the City of Charleston to Roaring Creek Junction, the whole length, with its equipment and improvements, has been $7,561,048.26, as shown by an itemized statement of said costs, which is filed herewith as part of this bill, marked Plaintiff's Exhibit A. And this does not include any interest on the amount invested in the railroad, except construction interest as shown therein.

IV. That the plaintiff, the said Coal & Coke Railway Company, has issued and outstanding, in the hands of bona fide holders for value, 100,000 shares of common stock of the par value of $100 each; total $10,000,000, and 88818 shares of five per cent. non-cumulative preferred stock of the par value of $100, and of the total par value of $8,881,800; said preferred stock having been issued in exchange for plaintiff's five per cent. first mortgage bonds, amounting to $6,300,000, and certain other forms of indebtedness, which had been issued for value received, and the holders of which surrendered them for the preferred stock in order that plaintiff's fixed charges might be reduced, and said preferred stock therefore represents bona fide funds obtained by plaintiff on said bonds and other forms of indebtedness, which were surrendered as aforesaid; that it has issued and has outstanding in the hands of bona fide holders for value, 3,030 five per cent. first mortgage bonds of the par value of $1,000 each, and of the total par value of $3,030,000, and that it also owes 30 five per cent. bonds of the old Charleston, Clendenin & Sutton Railroad Company of the par value of $1000 each and of the total par value of $30,000, making a total bonded indebtedness secured by mortgage upon the road, $3,060,000; that in addition to said bonds said plaintiff owes, to various holders, notes and bills payable amounting to $2,400,649.25, bearing six per cent. interest; the payment of more than half of which must be provided for within the present year; that it also owes car trust bonds, series A, amounting to $195,000, and car trust bonds, series B. amounting to $272,000, making a. total of car trust bonds of $467,000, and a grand total of stock, bonds, notes and equipment bonds of $24,809,449.25; and that it has in its treasury unissued first mortgaged five per cent. bonds of the par value of $1,970,000, all of which will more fully appear from a statement which is filed herewith as part of this bill, marked Plaintiff's Exhibit B.

V. Plaintiff further says that besides taking care of its notes and bills payable as they mature as aforesaid, its fixed charges, after paying expenses, for the year ending June 30th, 1908, are $378,459.86, as follows:

Interest on bonds .................................... $156,000.00
Interest on bills payable ..............................141,093.20
Interest on equipment obligations .................24,900.00
Equipment bonds maturing ...........................56,000.00
Interest on H. G. Davis' open account ...............466,66

Total fixed charges as above stated ...........$378,459.86

being an average fixed charge per month, over and above its bills payable and notes maturing as aforesaid, for the year ending June 30, 1908, of $31,538.32 as shown by a statement which is filed herewith as part of this bill, marked Plaintiff's Exhibit C. This does not include any dividend on its preferred stock or common stock.

VI. Plaintiff further says that on the 30th [sic] day of February, 1907, the legislature of West Virginia passed an act in the words and figures following, to-wit:

"Be it enacted by the Legislature of West Virginia:

Sec. 1. That all railroad corporations organized or doing business in this state under the laws or authority thereof shall be limited in their charges for the transportation of any person with ordinary baggage, not exceeding one hundred pounds in weight, to the sum of two cents per mile, or fractional part of a mile, but the fare shall always be made the multiple of five nearest reached by multiplying the rate by the distance, and if for any one passenger the rate herein provided shall be less than five cents, the said sum of five cents may be charged as a minimum; children under twelve years of age shall be carried for one-half fare above prescribed; provided, that any passenger boarding a train at a station where tickets are sold, without having procured a ticket, may be charged an additional fare of ten cents, for which sum a rebate slip, redeemable in money, upon presentation to any ticket agent of the company, shall be issued and delivered to such passenger; and provided, further, that nothing in this act shall apply to any railroad in this state under fifty miles in length and not a part of, or under the control, management or operation of any other railroad, over fifty miles in length, operating wholly or in part in the state.

Sec. 2. Any railroad company which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by this act, shall be fined for each offense not less than fifty dollars nor more than five hundred dollars; provided, that nothing contained in this act shall apply to electric lines and street railways owned or operated in this state.

Sec. 3. All acts or parts of acts inconsistent herewith are hereby repealed."

Said act is chapter 41 of the Acts of 1907 and was approved by the Governor February 24th, 1907, and went into effect ninety days after its passage, to-wit, on the 21st day of May, 1907, and said Statute has never been repealed by the legislature of West Virginia.

VII. Plaintiff further says that prior to the passage of said act limiting passenger fares to two cents per mile, the plaintiff, Coal & Coke Railway Company, had been charging, as it might lawfully do, about three cents per mile or fraction of a mile for the transportation of passengers with ordinary baggage. And plaintiff avers that said charge of three cents per mile was a reasonable and not excessive charge.

VIII. Plaintiff further says that ever since said Statute went into effect, it has been conforming to its provisions and not charging more than two cents per mile or fraction of a mile for carrying passengers over its line, and that the effect of the operation of said law has been to very seriously and materially decrease its earnings from passenger fares during the time it has been in operation as aforesaid. Plaintiff says that for the year ending June 30th, 1906, the passenger fares received by it amounted to $115,478.86; that for the year ending June 30, 1907, the passenger earnings amounted to $133,665.81., and that for the ten months ending April 30, 1908, whilst the said two cent fare law has been in operation, the passenger earnings amount to only $99,251.67. Plaintiff further says that the total gross earnings of its railroad for the year ending June 30, 1907, were $773,395.96., and that for the ten months ending April 30, 1908, the total gross earnings were $685,200.06. The total expenses, including taxes for the year ending June 30, 1907, were $668,809.16, and for the ten months ending April 30, 1908, said gross earnings were $623,334,33, all of which will more fully appear from a statement showing the earnings and expenses of operation of said Railway Company for the year 1906, 1907 and for the ten months ending April 30, 1908, which is filed herewith as part of this bill, marked Plaintiff's Exhibit D.

IX. Plaintiff futher [sic] says that the effect of the operation of said two cent fare law has been to cause an actual decrease in the passenger revenue of this plaintiff during each of the eleven months from June, 1907, to April 1908, inclusive, as compared with the previous eleven months from June, 1906, to March, 1907, inclusive, amounting in the agreegate [sic] to $14,566.67, as shown by a statement filed herewith as part of this bill, marked Plaintiff's Exhibit E. showing an average falling off of said passenger receipts for said nine months of $1324.24 per month.

X. Plaintiff further says that if it had been permitted to charge at the rate of three cents per mile for carrying passengers during said eleven months from June, 1907, to April, 1908, inclusive, it would have received from its passenger service $50,309.24 more than it has actually received under the operation of the two cent law, as shown by a statement filed herewith, marked Plaintiff's Exhibit F. And plaintiff avers that all of these statements were compiled by the auditor of the said Railway Company from the books and records of said Company and are authentic and correct.

XI. Plaintiff further says that whilst the actual cost of constructing the said railroad from Charleston to Roaring Creek Junction was $7,561,048.26, as shown by Exhibit A, filed herewith as above set forth, that said road has actually cost the present stockholders and bondholders a considerably larger sum of money than said original cost of construction; that to enable it to pay six per cent. interest on the actual cost of the construction of said railroad, to-wit, $7,561,048.26 will require the sum of $453,662.89 net earnings from said railroad after paying operating expenses, and that in order to pay its fixed charges and expenses over and above operating expenses, it will require net earnings to the amount of $378,459.86 annually, in addition, to its notes and bills payable as shown by Exhibit C above, being the interest on bonds, bills payable, rentals and taxes. In point of fact, the said railroad has never earned enough to pay more than a small fraction of its fixed charges or to pay a reasonable per cent. upon the actual cost of its construction. For the year ending June 30, 1906, the net earnings of said plaintiff Railway Company, after paying operating expenses, were $139,995.57 and for the year ending June 30, 1907, the net earnings were $104,586.80, whilst for the ten months ending April 30, 1908, the net earnings were only $61,865.73 as appears from Exhibit D above. These net earnings for said ten months average $6,186.57 per month, and at the same rate the total net earnings for the year ending June 30, 1908, will only amount to $74,238.84, which is less than one per cent. on the total cost of the road.

XII. Plaintiff further says that whilst the operating expenses compared to the earnings have been larger than many of the roads of the country, yet the plaintiff believes that said road has been as economically operated and carried on as was practicable under the circumstances. Said road, as has been alleged above, was in its construction period. It passes through a rough mountain region with a large number of cuts, fills and tunnels, and, as is necessarily the case with a new road passing through such a region, there has been a great many mountain slides and washouts and other interruptions to train service, and therefore increasing the expense of operation. But plaintiff avers that if the proportion of operating expenses to earnings were reduced below the average of the railroads of the country still the net earnings would be and would have been during the last two years, insufficient to pay the fixed charges above mentioned or to pay a reasonable percentage on the actual cost of the construction of the railroad.

XIII. Plaintiff further says that even whilst it charged three cents per mile for carrying passengers, its passenger trains were operated at a loss, and that the effect of the two cent law above mentioned has been to decrease its passenger earnings below what they would have been if it has been permitted to continue charging three cents at least $4621.50 per month. The said loss for the year ending June 30, 1908, upon this basis, will not be less than $55,458.00, as shown by Exhibit F, heretofore filed with this bill.

XIV. Plaintiff further says that it has in good faith observed and lived up to the said two cent law in order that it might ascertain and determine for itself whether there would be any compensatory increase in the passenger earnings from the reduced rates, and now it avers that it actually costs it more than two cents a mile to transport its passengers, and that there has been no such compensatory increase in the passenger business resulting from said reduced rates, and plaintiff believes and charges that it would have carried as many passengers if the rate had remained at three cents per mile as it has carried since it has been only two cents per mile.

Exhibits G and H filed herewith show the net loss sustained in operating the passenger trains, upon this assumption. In Exhibit G the proportion of expenses is based on train mileage. In Exhibit H it is based on locomotive miles. The train mileage is the basis used for such stsements [sic] by the Interstate Commerce Commission as plaintiff understands.

XV. Plaintiff further says that the rate of about three cents per mile for carrying passengers, which was charged by it, the said Railway Company, before the said act went into effect, was not higher than a reasonable compensation for the service rendered by it to travelers on its line and was in no sense excessive or extortionate. And plaintiff is advised that as an incident to its property and as a property right, it has the right to charge, for carrying passengers, a reasonable compensation, and that it is protected by the constitution and laws of this State in making, receiving and collecting such reasonable charge; that the effect of the said act limiting it to two cents per mile for the transportation of passengers has been and will be to reduce its charges below what is a reasonable compensation for the service rendered travelers on its line and is confiscatory and therefore it is advised that the effect of said law is to deprive it of its property without just compensation and without due process of law and to deny it the equal protection of, the law, and the plaintiff claims the benefit of sections 9 and 10 of Article 3 of the Constitution of West Virginia, which provides that private property shall not be taken or damaged for public use without just compensation, and that no person shall be deprived of life, liberty or property without due process of law and the judgment of its peers. And complainant says that if the said two cent law is continued in operation and it is compelled to continue to limit its charges as provided in that law, the result has been and will be to deprive the plaintiff of its property without due process of law and without just compensation, contrary to the said provisions of the Constitution of West Virginia and also contrary to the Fourteenth Amendment to the Constitution of the United States.

XVI. Plaintiff further say that finding that the operation of the said two cent law has had the effect above mentioned, it recently announced that it would disregard the law as void and of no effect and restore the passenger rates upon its line to the rates that were charged before said law went into operation; and thereupon the defendant, S. B. Avis, prosecuting attorney of Kanawha County, gave notice to the plaintiff that if it violated said law by selling tickets or charging passengers more than two cents per mile he would present the matter to the grand juries of said county and procure indictments against the said railroad company and prosecute it for each offence. And the said defendant, W. G. Conley, Attorney-General of the State of West Virginia, has also notified the plaintiff that he will take such action, as lies within the powers of his office, to enforce said law criminally against the plaintiff and its officers and employees.

XVII. Complainant says that by section 2 of the said chapter 41 of the Acts of 1907, it is provided that any railroad company, which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by this Act, shall be fined for each offence not less than fifty dollars nor more than five hundred dollars. Plaintiff is advised that the effect of this Act, if enforced, would be to subject the plaintiff to a maximum fine of five hundred dollars for each sale of a passenger ticket or for each act of a conductor on its trains in collecting from any passenger more than two cents per mile; that an effort is made by these enormous penalties to prevent the plaintiff from making any inquiry into the validity of said statute and so burden any challenge thereof in the courts of this State that the plaintiff and others affected thereby must necessarily submit rather than take the chances of the penalties imposed. And complainant is advised that the effect of these penalties and of said legislation which imposes them, because no other person or business in the State of West Virginia is subjected to such penalties under similar circumstances, is to deprive the plaintiff of the equal protection of the law and is moreover a denial to the plaintiff of due process of law and contrary to the provisions of the Constitution of West Virginia and to the Fourteenth Amendment to the Constitution of the United States.

XVIII. Complainant further shows that unless this honorable Court takes jurisdiction of and determines the question of the constitutionality and validity of said Statute and affords plaintiff relief in respect thereto in this cause, the number of actions or penalties to which it will be thus exposed and which will thus be instituted against it will be enormous and it will be very difficult if not practically impossible, to set up the matters of defense which show the invalidity and unconstitutionality of said statute and in any event it will be seriously and unjustly burdensome and expensive to the plaintiff to be subjected to the great multiplicity of indictments and prosecutions for penalties to which it would be subjected if relief herein is not granted, and the pendency of said prosecutions involving in the aggregate such enormous amounts of penalties would depreciate the value of the property of the plaintiff and the value of its stocks and bonds and would greatly impair its credit, and consequently its ability to perform the public service required by the commerce on its lines and would inflict great and irremedial injury and damage not only upon the plaintiff but upon the holders of its stocks and bonds, as well as upon the shipping and traveling public, and complainant avers that in all the multitude of indictments and prosecutions which would be instituted for the enforcement of said law the same question would be involved, and that that question is involved and can be tried and the merits fairly determined in this cause; that such indictments and prosecutions would not only be brought in the County of Kanawha, but in each of the counties through which its railroad runs, to-wit, the Counties of Clay, Braxton, Gilmer, Upshur, Lewis, Barbour, and Randolph, so that it would be obliged to make defense to these indictments and prosecutions in a great many different places and counties at the same time. And therefore complainant avers that it, the said Railway Company, and the holders of its stocks and bonds and other obligations, as aforesaid, will be irremediably injured unless an injunction be granted as hereinafter prayed, and relief be given to them in this suit.

XIX. Complainant further says that it believes that it will be several years before the freight and passenger business along its line will increase to such an extent that its net earnings will be sufficient to pay its fixed charges above set forth, or to pay a reasonable interest on the amount of money actually invested in the construction and maintenance of its said railroad, and that it is advised that until its earnings shall increase to the extent last aforesaid the legislature of the State of West Virginia has no right or power to lessen its earnings either from passenger or freight by reducing the freight or passenger rates which it is authorized to charge and which are reasonable and not extortionate.

XX. Plaintiff further says that whenever its said earnings shall increase to such an extent as to enable it to pay its fixed charges or to pay a reasonable interest upon the amount actually invested in the construction and maintenance and acquisition of its railroad, it will then, after that, as its earnings increase beyond that point, be entirely equitable, just and reasonable for a reduction to be made in the freight and passenger rates, and it will be entirely willing that that shall be done and it is willing to make reports either to this Court or to any department of the government of the State of West Virginia, showing its net earnings from time to time, so that the said two cent fare law may be made applicable to it whenever it is just, reasonable and equitable to do so.

The prayer of this bill therefore is that a writ of injunction may be issued out of this Court enjoining, restraining and prohibiting the defendants, William G. Conley, Attorney-General of the State of West Virginia, and S. B. Avis, Prosecuting Attorney of Kanawha County, from enforcing the said Act of February 20, 1907, limiting the charges for the transportation of passengers with ordinary baggage not exceeding one hundred pounds in weight, to the sum of two cents per mile or fractional part of a mile against this plaintiff or against any of its officers, agents or servants; that said law may be declared to be null and void and of no effect so far as it relates to plaintiff's line of railroad in the State of West Virginia; that the said S. B. Avis, Prosecuting Attorney, as aforesaid, may be enjoined, restrained and prohibited from procuring or attempting to procure indictments against the plaintiff and from instituting criminal proceedings or prosecutions against it of any character, because, of its failure to observe and carry out the said two cent law or because of any violation of said law by the plaintiff, and that the said William G. Conley, Attorney-General of the State of West Virginia, may also be enjoined, restrained and prohibited from instituting, prosecuting, continuing or carrying on any indictments or other criminal or civil prosecution or suit against the plaintiff because of its failure to observe, keep and perform the said Act of the legislature, or because of its violation of any of the provisions of said Act, and that said Avis and said Conley may each be enjoined, restrained and prohibited from enforcing, or attempting to enforce against this plaintiff any of the penalties prescribed by said Act, and that all other persons may be enjoined, restrained and prohibited from instituting or prosecuting any actions, suits or proceedings, civil or criminal, against the plaintiff or against any of its officers, agents or employees for the purpose of subjecting it to the penalties prescribed by said Act or for the recovery of any damages or overcharges under or by virtue of said Act or any other law of the State of West Virginia, because of or growing out of the failure of the plaintiff or any of its officers, agents or employees to put into effect or observe any of the provisions of said Act or for violating the said Act or any part thereof; and that plaintiff may have such other and further relief as the nature of its case requires and the Court sees fit to grant.

COAL & COKE RAILWAY COMPANY,
By Counsel.

PRICE, SMITH, SPILMAN & CLAY,
Counsel.

State of West Virginia, County of Randolph, To-wit:

Henry G. Davis, Being duly sworn, on his oath says that he is the President of the Coal & Coke Railway Company, the plaintiff named in the foregoing bill of complaint, and that he knows the contents thereof, and that the facts and allegations therein contained are true except so far as they are therein stated to be upon information, and that so far as they are therein stated to be upon information, he believes them to be true.

H. G. DAVIS.

Taken, sworn to and subscribed before me this 29 day of June, 1908.

GUS WARFIELD, JR.,
Notary Public.

State of West Virginia, Randolph County, To-wit:

M. L. Rouzer, being duly sworn, on his oath says that he is the General Auditor of the coal & Coke Railway Company, the plaintiff named in the foregoing bill of complaint; that he prepared the several statements which are filed with said bill of complaint marked Plaintiff's Exhibits A, B, C, D, E, and F; that said statements were carefully compiled from the books, papers and records of said Company in his office; that they are correct, accurate and complete statements of the several matters and things therein set forth as shown by said books, papers and records in affiant's office.

M. L. ROUZER.

Taken, sworn to and subscribed before me this 29 day of June, 1908.

GUS WARFIELD, JR.,
Notary Public.

. . .

(The Exhibits A, B, C, D, E, F, G, & H, referred to in the foregoing Bill are in the words and figures following, to-wit:)

. . .

Coal and Coke Railway Company,
vs. ) In Chancery.
William G. Conley and S. B. Avis.

The Joint and Separate Answer of the defendants, William G. Conley and S. B. Avis, to the Bill of Complaint of the Coal and Coke Railway Company filed in the Circuit Court of Kanawha County, West Virginia, against these defendants.

To the Honorable Samuel C. Burdett, Judge of said Court:

These defendants, William G. Conley and S. B. Avis, now and at all times hereafter saving to themselves all manner of benefit of exception or otherwise that can or may be had or taken to the many errors, uncertainties and imperfections in the bill of complaint of the said Complainant, Coal and Coke Railway Company, herein, and also as to the jurisdiction of the Court, as to these defendants, and either of them, and to the subject matter named and set forth in said bill of complaint, and protesting that this is substantially a suit against the State of West Virginia, and against its consent, for answer to said bill of complaint, or unto so much and such parts thereof as these defendants are advised is or are material or necessary for them, or either of them, to make answer unto, jointly and separately answering say:

1. They admit that the plaintiff, the Coal and Coke Railway Company, is a railway corporation chartered under the general laws of the State of West Virginia, and that plaintiff owns and operates a railroad wholly within the State of West Virginia, extending from Roaring Creek Junction, near Elkins, in Randolph County, through the Counties mentioned in the bill of complaint, to the City of Charleston in Kanawha County. These defendants do not know the total number of miles of railroad, including branches, owned by said complainant - are therefore unable to say - and ask that complainant be required to present proof thereof.

2. These defendants admit that about sixty miles of said railroad extending from the City of Charleston, partly through the Counties of Kanawha and Clay, was built between the years 1890 and 1904, by the Charleston, Clendennin and Sutton Railroad Company and that complainant acquired same in the year 1904, and built the residue of said railroad between the year 1904 and the early part of the year 1906; and that through trains have only been running on said railroad, from and to the points mentioned in said bill of complaint, since January, 1906. They deny that complainant's said road has been in process of construction since 1904 to nearly the present time, and aver that a large part of same was constructed prior to its acquisition by the complainant. They admit that Complainant's said railroad extends through a sparsely settled and largely undeveloped country; but are unable to say whether Complainant's said railroad depends, for its ultimate success entirely upon the development of the coal and timber and other industries along its line, which complainant says has been very much retarded by the depression in business now prevalent.

3. These respondents are unable to state the exact cost of building Complainant's said railroad, the whole length, with its equipment and improvements, but these defendants have been informed and believe that the actual cost of building said railroad, with its equipment and improvements, is considerably less than that claimed by said complainant in said bill and therefore they deny, and believe the denial to be true, that the actual cost of building Complainant's said railroad, the whole length, with its equipments and improvements, has been $7,561,048.26, as alleged by said Complainant in said bill of complaint and Exhibit A therewith, and ask that the Complainant be required to present proof thereof.

4. These defendants, further answering, say they do not know whether the stock, common and preferred, and the real and legal bonded and other indebtedness, issued by Complainant, and outstanding, is as stated in Complainant's bill and ask that plaintiff be required to present proof thereof; and they further say that they are informed and believe it to be true, and therefore allege, that the par value of the stock, bonds and other forms of indebtedness issued by said Complainant and outstanding is greatly in excess of the value and actual cost of building complainant's said railroad and branches, the whole length, with its rights of way, equipment and improvements, and much greater than the cost of reproducing Complainant's said railroad and branches the whole length, with its rights of way, side tracks, equipments and improvements and much greater than the present value of same and the original cost per mile of constructing, improving and equiping same, including Complainant's rights of way.

These defendants further say that they are informed and believe, and therefore allege that much of the said stock issued by Complainant is watered stock and does not represent the true value of Complainant's said railroad and railway property, equipment and improvements, that the total value of Complainant's said railroad and railway property, including rights of way, sidings, telephone and telegraph lines, bridges, equipment and improvements, does not exceed the sum of $3,050,000.00 and ask that the Complainant be required to present proof thereof. They further say that the bonded and other indebtedness, and amount of stock of the Complainant are merely some of the elements to be considered in determining the value of Complainant's railroad and railway property, and that when that value has been determined, the justness and reasonableness of Complainant's income is to be tested by that alone, and not by the amount of indebtedness of Complainant, the interest thereon, the original cost of building and constructing Complainant's said railroad, the amount of Complainant's stock issued and outstanding, the right to dividends upon said stock or other considerations of like character.

5. These defendants, further answering, say they do not know what Complainant's fixed charges, for the year ending June 30, 1908, are, or the average fixed charges of plaintiff per month for said year, and are therefore unable to say, and ask that Complainant be required to present proof thereof.

6. These defendants, further answering, say they admit the passage, on the 20th of February, 1907, by the Legislature of West Virginia, of the Act set out in paragraph VI of the said bill; that said Act is Chapter 41 of the Acts of 1907, and was approved by the Governor February 24th, 1907, and went into effect on the 21st day of May, 1907, and that said statute has never been repealed.

7. These defendants further admit that prior to the passage of said Act mentioned in paragraph 6 hereof, the plaintiff was charging about three cents per mile or fraction of a mile for the transportation of passengers with railway baggage to some of its passengers only, but they are informed, believe and so charge that to other of its passengers, two cents per mile was charged in the shape of mileage books. These defendants deny that said charge of three cents per mile was a reasonable charge and not excessive charge, as alleged by Complainant.

8. These defendants, further answering, say that they are informed that Complainant, ever since said Act went into effect, has been conforming to its provisions and not charging more than two cents per mile or fraction of a mile for carrying passengers over its line; they deny that the effect of the operation of the said Act and law has been to very seriously and materially decrease Complainant's .earnings from passenger fares during the time said Act and law has been in operation, as alleged by Complainant in its said bill. These defendants do not know what passenger fares and earnings were received by Complainant for the years ending June 30th, 1906, June 30th, 1907 and for the ten months ending April 30th, 1908, nor do these defendants know what Complainant's gross earnings and total expenses were for said years and said ten months, as alleged by said Complainant in paragraph VIII of its said bill, and the exhibit therewith, and are therefore unable to say, and ask that Complainant be required to present full proof thereof.

9. These defendants, further answering, deny that the effect of said two cent fare law has been to cause an actual decrease in the passenger revenue of said Complainant, as alleged in paragraph IX of its said bill, and deny the correctness of the statement filed therewith, marked Plaintiff's Exhibit E.

10. These defendants, upon information and belief, deny that Complainant would have received from its passenger service $50,309.24 more than it has received under the operation of the two cent law, for carrying passengers during the eleven months from June, 1907 to April 1908, inclusive, if it had been permitted to charge at the rate of three cents per mile for carrying passengers during said period, and further deny the correctness of the statement filed with paragraph X of Complainant's said bill, marked Plaintiff's Exhibit F.

11. These defendants are unable to state what Complainant's said road has actually cost the present stockholders and bondholders; they are further unable to say what net earnings, after paying operating expenses, will be required annually by Complainant to enable it to pay six per cent. interest on the cost of constructing said railroad and to pay its fixed charges and expenses; these defendants further are unable to say what Complainant's said railroad has earned in the past, nor to say what it has earned or will earn during the respective periods mentioned in paragraph XI of Complainant's said bill and ask the Court that the Complainant be required to present full and strict proof concerning all of these matters and concerning all other matters alleged in paragraph XI of Complainant's said bill.

These defendants deny that Complainant's experience for the periods mentioned in said paragraph of the said bill, or for the period of ten months ending April 30th, 1908, or for previous years and periods, is at all conclusive as to what it may be in the future with its rapidly changing conditions. These defendants further say and allege that such experiences are merely some of the matters and elements to be considered in determining the reasonableness of the provisions of, and compensation under, said Act and Statute in question. These defendants further say that the Complainant's experience for the period of ten months ending June 30th, 1908, should be given little, if any, weight and consideration, and in support thereof avers that said period of ten months ending June 30th, 1908, was an abnormal and exceptional period of adversity, panic, business depression and financial distress throughout the United States and this State, and that not only was the Complainant seriously affected thereby in its earnings, but the railroad and other business generally throughout the country, and particularly the industries and development along Complainant's said railroad, were likewise affected, and that said depression, panic and financial distress greatly affected the Complainant's said railroad in its passenger and freight traffic and in its earnings therefrom, while the cost of labor, rails, material and equipment was much higher during said period; and upon information and belief, these defendants, further aver that such periods of depression and panic affect passenger traffic and earnings much more than they do freight traffic and earnings. These defendants further say, that they have reason to believe, and so aver, that business conditions are improving throughout the United States and that because of this improvement and because of the increase of population and development along Complainant's said railroad, and of the reduced rates provided in said Act, the business of Complainant will be greatly increased in the near future, and this with a comparatively small increase in Complainant's operating expenses.

These defendants, upon information and belief, further say and aver that it is the experience of the greater number, if not all, of the railroads in the United States, to lose money the first few years of their existence and operation; that said railroads have to build up their business and develop their traffic by building up business, developing resources and encouraging enterprises along their lines. These defendants, further answering, aver that Complainant's said railroad is situated in a thriving and rapidly growing section of the State; that it penetrates great and valuable lumber and timber forests and coal and other mineral properties; that the population along said railroad is rapidly increasing, and that Complainant's traffic and particularly its passenger traffic, will necessarily be greatly increased shortly with the return of normal business conditions.

12. These defendants, further answering, admit that Complainant's operating expenses, compared to its earnings, have been larger than many of the railroads of the country, and upon information and belief, say and aver that Complainant's operating expenses, compared to its earnings, are greater than the vast majority of the railroads of the country of equal or greater mileage. Upon information and belief defendants deny that Complainant's said railroad has been economically operated and carried on, and that its net earnings, during the last two years, with economical operation, would have been and will be insufficient to pay a reasonable percentage on the actual cost of constructing said railroad.

These defendants, further answering, upon information and belief, say and aver that all of Complainant's said railroad has not been judiciously located from a public and business standpoint; that a large proportion of Complainant's capital and indebtedness, and that of certain of its officers and stockholders, was and is invested in coal and timber lands along Complainant's said railroad, as now located; that Complainant and a large number of its officers and stockholders owned and now own large boundaries of coal, mineral and timber and other lands, and mineral rights, in Kanawha, Braxton, Lewis, Harrison, Upshur, Barbour and Randolph Counties, West Virginia; that the assessed value for taxation of Complainant's said property in said Counties for the year 1907, was $847,976.00; that the present market value of said properties is many times its assessed value; that a large part of Complainant's said railroad was located with the view and object and for the purpose of developing and enhancing the value of said properties and rights and other like properties of some of Complainant's said officers and stockholders, and that said properties and rights of Complainant have been enormously increased in value by reason of the location and construction of Complainant's said railroad, and these defendants believe and aver that your Honorable Court in passing upon and determining the matters complained of in Complainant's said bill, and particularly of the reasonableness of said Complainant's earnings and compensation under said Act, should and will take into consideration all such matters in this paragraph averred and alleged, and particularly the enormous increase in value of Complainant's said properties by reason of the location and construction of Complainant's said railroad.

13. These defendants, upon information and belief, deny the allegations of fact contained in paragraph XIII of Complainant's said bill.

14. These defendants, further answering, say they are informed that Complainant has lived up to and has observed said two cent law, but upon information and belief deny that it costs Complainant more than two cents a mile to transport its passengers, and further deny the other allegations of fact contained in paragraph XIV of Complainant's said bill, and the allegations of loss therein, in operating its passenger trains, as shown by Exhibits G and H, respectively, with said paragraph of said bill. These defendants, further answering, upon information and belief, say and aver that Complainant's said railroad was located and constructed more particularly to develop Complainant's said properties and rights and the coal and timber lands along its said railroad, and with the object, view and purpose of becoming what is commonly called a coal and lumber railroad rather than a passenger railroad, and with the further view, purpose and object of developing freight rather than passenger traffic, that leaving out of consideration Complainant's road bed, that by far the greater part of Complainant's capital is invested in freight rather than in passenger equipment; that its road bed, bridges, switches and sidings were constructed at a greater cost than would have been necessary otherwise, to sustain the heavy strain and wear and tear of hauling coal and lumber; that the total number of Complainant's passenger locomotives, owned or used on its said railroad, are, to-wit, eight, of the total value of, to-wit, $38,568.24, and that the total number of its passenger combinations, baggage and postal cars, owned or used, are, to-wit, eighteen, of the total value of, to-wit, $30,307.56, while its total number of freight engines, owned or used, are, to-wit, twenty-two, of the total value of, to-wit, $187,722.32, and that its total number of freight cars, including box, flat and coal cars, owned or used, are, to-wit, 1421, of the total value of, to-wit, $750,073.50, and in addition thereto, it owns and uses to-wit, seventeen gravel and derrick cars of the value of, to-wit, $11,424.00 and, to-wit, four caboose cars of the value of, to-wit, $362.40, and said Complainant owns or leases to-wit, 700 additional coal cars of the value of to-wit, $538,225.00.

These defendants, further answering, say and aver, upon information and belief, that only mediocre passenger service is rendered to the traveling public by Complainant on its said railroad; that it runs, for the full length of its said railroad, only two passenger trains each way per day; that these said passenger trains are under the average of other railroads in comfort and speed; that said trains do not average in number over four cars, including passenger, combination, baggage or postal cars; that said passenger trains are operated by crews which do not average over five men; that Complainant has no dining, parlor or sleeping car service and its passengers cars, so used in said passenger trains, are of the poorest kind in point of comfort and convenience.

Further answering, these defendants say and aver, that according to Complainant's sworn reports and return to the Board of Public Works of the State of West Virginia for the year ending December 31, 1907, the true and actual value of Complainant's said railroad, roadbed, equipment, stations, bridges, telephone and telegraph lines, rolling stock, tools, machinery, buildings, grounds, and real estate and all other personal property, was $3,043,827.15; that in accordance with said return, Complainant's gross earnings from operation, and other income for the year ending December 31, 1907, were $960,549.34; that its operating expenses, including taxes (and your respondents are informed, also salaries), for said year, were $788,156.59; that Complainant's net earnings for said year were $172,392.75. These defendants therefore say and aver that Complainant's net earnings (said last mentioned sum) were, to-wit, 5 3-5 per cent. on the said total value of said road of $3,043,827.15 as per said return, for said year.

These defendants, further answering, say and aver, that according to said return for said year, Complainant's total passenger earnings for said year (including fares, express, baggage, mail and other items) were $144,838.86 and that Complainant's total freight earnings for said year were $487,977.47. These defendants further say and aver that for said year, Complainmant's [sic] total Passenger Car Mileage was 510,932 miles and its total Freight Car Mileage, for said year, was 3,045,023 miles.

These defendants, further answering, say and aver, upon information and belief, that in determining whether the rate imposed by said Act upon said Complainant, is reasonable, the entire traffic of every kind of Complainant, and all other income, and profit of Complainant by reason of the location and operation of its said railroad, should be taken into consideration and that Consideration of this matter should not be confined to passenger traffic alone, but should include the receipts from freight, expressage, mail, packages, baggage and all other sources, and as well the increase in value of any properties and mineral rights owned by it, not used in railroad business proper.

15. These defendants, further answering, upon information and belief deny that the rate of three cents per mile for carrying passengers, which was charged by Complainant before said went into effect, was not higher than a reasonable compensation for the services rendered by Complainant on its line. These defendants deny all the other allegations of fact contained in paragraph XV of Complainant's said bill, and are advised that the conclusions of law stated therein are erroneous. These defendants say and reiterate that upon the value of the service rendered and of the property employed, Complainant's right to a just and reasonable compensation will not be impared [sic] by the provisions of said Act.

16. These defendants, further answering, admit that Complainant recently announced that it would disregard the said Act and law as void and of no effect and restore the passenger rates upon its lines to the rates that were charged before said law went into operation, and that the defendant, S. B. Avis, Prosecuting Attorney of Kanawha County, as such Prosecuting Attorney and only as such Prosecuting Attorney, gave notice to Complainant, that if it violated said law in Kanawha County, by selling tickets or charging passengers more than two cents mile, he, the said S. B. Avis, only as such Prosecuting Attorney, would present the matter to the grand juries of said county and prosecute it for such offenses. These defendants, further answering, admit that the defendant, W. G. Conley, Attorney General of the State of West Virginia, and only as such Attorney General, notified Complainant that he would take such action as was in the powers of his office, to enforce said law against the said Complainant, in the manner and under the circumstances hereinafter set out.

17. These defendants, further answering, admit that by Section 2 of the said Chapter 41 of the Acts of 1907, it is provided that any railroad Company which shall charge, demand or receive any greater compensation for the transportation of any passenger than is authorized by said Act, shall be fined each offense not less than fifty dollars nor more than five hundred dollars. These defendants further admit that the effect of this Act, if enforced, would be to subject the Complainant to a maximum fine of five hundred dollars for each sale of a passenger ticket at more than two cents per mile; but these respondents deny the other allegiations [sic] of fact contained in paragraph XVII of Complainant's said bill, and are advised that the conclusions of law therein stated are erroneous, and that no constitutional right of Complainant, is involved in this suit.

The defendants, further answering, deny that this Honorable Court ought to take jurisdiction of this cause, and deny that said Complainant is entitled to the relief, or any part thereof, demanded in its said bill of complaint. These defendants further answering paragraph XVIII of Complainant's said bill, deny that complainants and the holders of its stocks and bonds will be irremediably injured unless an injunction be granted as prayed for in Complainant's said bill, and relief be given them in this suit. These defendants say that said act is valid and constitutional in all respects, that no restraint whatever should be imposed upon the execution and enforcement; that said complainant has ample remedy at law and can make a proper defense for any violation of said Acts in the Courts of Law of this state; that said Act simply provides that a violation thereof shall constitute a misdemeanor and be punishable by a fine, at the discretion of the Court, of not less than fifty nor more than five hundred dollars; that said Act fixes the rate to be charged and is positive, unconditional and self-executing in its provisions; that these defendants, as Attorney General of West Virginia and as Prosecuting Attorney of Kanawha county, respectively, are charged with no special or greater duty in regard to said Act and its enforcement, than to any other law of West Virginia which imposes a fine or penalty for its violation. And these defendants aver that neither of them announced or gave any notification of their intention to enforce the provision of said Act or to prosecute any violations thereof, except in their official capacities, as such Attorney General and Prosecuting Attorney, respectively, and in the manner provided by law, and that as to these defendants this suit is in effect and in fact a suit against the state of West Virginia., and without its consent.

Further answering, said paragraph XVIII of said bill, these defendants deny all other allegations of fact therein stated, not otherwise herein answered, and deny the conclusions of law therein.

19. These defendants further answering say that they are unable to state whether, or when, Complainant's net earnings from freight and passenger business along its line, is, or will, be sufficient to pay its fixed charges, or a reasonable interest on the amount of money invested in the construction and maintenance of its said railroad, and pray that Complainant be required to furnish proof in regard thereto. Further answering paragraph XIV of Complainant's said bill, these defendants say that they are advised that the conclusions of law therein stated are erroneous.

20. These defendants, further answering, say that they are advised that there are no allegations of fact contained in paragraph XX of Complainant's said bill which they are required to answer, not otherwise herein already answered.

21. These defendants, further answering Complainant's said bill, say and aver that in enacting said Act, the Legislature was legitimately exercising the sovereign powers of the state of West Virginia, that it was, and is, the duty of the state to provide that no greater rate be imposed upon the travelling public and its people by Complainant than is a just and reasonable compensation for the value of the services performed and rendered by said Complainant.

And these defendants further aver that said Act was passed after proper consideration and investigation by the Legislature, before the passage of said Act, as to what would, be the proper rates be charged by said Complainant, and that said two cent fare fixed in said Act, is reasonable, fair and just, alike to complainant and to the traveling public, whether considered in respect to the value of the property used, or in respect to the value of the service rendered, by Complainant, and does no injustice to Complainant, to stockholders or creditors, neither does said act deprive either or any of them of their property without just compensation or due process of law, nor deny to any or either of them equal protection of the laws, and it therefore becomes the duty of the Complaintant [sic] to clearly show that said two cent rate imposed by said Act is so unjust and unreasonable as to be confiscatory.

22. And now these defendants, for farther answer unto said bill of said Complainant, jointly and severally, on behalf of all the citizens and taxpayers of Kanawha county and of the state West Virginia, and on behalf of the travelling public and their official capacities, respectively, said defendants, William G. Conley, as Attorney General of West Virginia, and said defendant, S. B. Avis, as Prosecuting Attorney of Kanawha county, West Virginia, setting up a claim to affirmative relief against the said Complainant, answering, say, that, on the first day of June, 1908, the said Complainant, Coal and Coke Railway Company, by Geo. E. Price, Esq., its General Counsel, wrote one of these defendants, viz, S. B. Avis, Prosecuting Attorney of Kanawha County, West Virginia, a letter in which it stated that said Complainant had concluded to restore its rates, on its said railroad, which were in effect prior to the passage of the aforesaid mentioned two cent law; and desired to inquire whether said defendant, S. B. Avis, Prosecuting Attorney as aforesaid, would attempt to enforce the said two cent law against said Complainant if the former rates were restored, a copy of which said letter is filed with this answer marked Exhibit "A", and is asked to be read and considered a part hereof. These defendants further say that on the 3rd day of June, 1908, the said defendant, S. B. Avis, as Prosecuting Attorney of Kanawha County, replied to said letter and informed said Complainant that he considered that it would be his duty to take the necessary steps to enforce said law, and that if said Complainant proceeded to violate it, he would be compelled to institute prosecutions and obtain indictments against said Complainants under said law, a copy of which said reply is filed with this answer, marked Exhibit "B", and is asked to be read and considered as a part hereof. These defendants further say that this reply was the only notice given to or the only threat ever made against said Complainant by said defendant, S. B. Avis, as Prosecuting Attorney of Kanawha County, or in any other capacity.

These defendants further say that the said notification mentioned in the said bill of Complainant, as having been given by said defendant, William G. Conley, as Attorney General of West Virginia to said Complainant, was given on a similar declaration and inquiry of said Complainant, and said notification to said Complainant, was the notification ever given to, or the only threat ever made against said Complainant, by said defendant, William G. Conley, as Attorney General of West Virginia, or in any other capacity.

23. These defendants are advised that the effect of said Act (Chapter 41 of the Acts of the Legislature of West Virginia, 1907) was and is to repeal all Acts, or parts of Acts of West Virginia, and Statutes, inconsistent therewith, and that if your Honorable Court should declare and hold said Act to be unconstitutional, null and void, as to said Complainant, and should grant the injunction and relief as prayed for in Complainant's said bill, there would be no other Act of the Legislature of West Virginia, or Statute, which would require Complainant, as a common carrier of passengers, which these defendants aver Complainant is, to charge reasonable, non-excessive and just rates of charges for the transportation of passengers within the State of West Virginia, or which would in any manner provide for maximum rates of charges for the transportation of passengers within said State, by said Complainant, or which would in any manner limit and restrict Complainant in the amount of rates of charges which it might impose, for such said service in said State. These defendants reitterate that said two cent law is constitutional and valid in all respects, and that the rates imposed thereby are reasonable and just. These defendants upon information and belief say and aver that the said rates which said Complainant charged and imposed in said State prior to the passage of the said two cent law, and which said Complainant threatens to restore on its said railroad, are and would he unreasonable, excessive, unfair and unjust to these defendants and to each of them; to all other citizens and taxpayers of Kanawha County and the State of West Virginia and to the travelling public, and if restored or increased, that these defendants, the travelling public and all other citizens and taxpayers of Kanawha County and said State of West Virginia would have no adequate remedy at law. These defendants further say that they and each of them are citizens and taxpayers of West Virginia and are a part of said travelling public and have and do frequently travel on Complainant's said railroad as passengers and expect and intend to travel on Complainant's said railroad as passengers in the very near future.

24. These defendants are further advised that even if said two cent law is unreasonable, unjust and unconstitutional in respect to said Complainant, which these defendants expressly and emphatically deny, that Complainant, as such common carrier of passengers, in the absense of and regardless of any Act or Statute of this State, was, at common law, and is required to transport these defendants, the citizens and taxpayers of West Virginia and the general travelling public, on its said railroad and passenger trains in said State, at not excessive rates, and cannot subject them or any of them to unreasonable or unfair rates for such service.

Upon these grounds hereinbefore set forth, these defendants therefore pray that said Complainant, Coal and Coke Railway Company, be required to defend this answer, setting up a claim to affirmative relief, that a writ of injunction may be issued out of this court, enjoining, restraining and prohibiting the said Complainant, Coal and Coke Railway Company, its officers, directors, stockholders, employees, agents and servants, from restoring the passenger rates which were in effect on its said railroad in said State prior to the passage of said two cent law and from subjecting, charging or imposing on these defendants or either or any of them, all other citizens and taxpayers of Kanawha County and said State, the travelling public and any and all natural person or persons whatsoever, any excessive, unjust and unreasonable rates of charges for carrying them or any of them as passengers on its said railroad in said State; and that this Honorable Court will ascertain and determine in this suit, if it should hold said two cent rate law unconstitutional, unreasonable and confiscatory with respect of and with regard to said Complainant, Coal and Coke Railway Company, what are such reasonable rates of charges beyond which said Complainant, Coal and Coke Railway Company may not go, exceed and charge in transporting these defendants, or either of them, all other citizens and taxpayers of Kanawha County and State of West Virginia, the travelling public and all other natural persons whatsoever as passengers on its said railroad in said State; and grant unto these defendants such other and further relief as the Court may see fit and their answer may require.

These defendants deny that the facts stated in Complainant's said bill, and especially when considered in connection with said return of said Complainant to the said Board of Public Works, make out a cause authorizing the interference of a Court of Chancery in Complainant's behalf; and humbly pray to be hence dismissed with their reasonable costs and charges as to Complainant's said bill most wrongfully sustained.

WILLIAM G. CONLEY,
S. B.AVIS,
By Counsel.

WM. G. CONLEY,
Attorney General,
AVIS & HARDY, Sols.

Transportation